State v. Hampton
| Decision Date | 16 April 1996 |
| Docket Number | No. 95-0152-CR,95-0152-CR |
| Citation | 549 N.W.2d 756,201 Wis.2d 662 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Gary HAMPTON, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
For the defendant-appellant the cause was submitted on the briefs of Michael S. Holzman of Rosen and Holzman Ltd. of Waukesha.
For the plaintiff-respondent the cause was submitted on the briefs of James E. Doyle, Attorney General and Maureen McGlynn Flanagan, Assistant Attorney General.
Before WEDEMEYER, P.J., and SULLIVAN and FINE, JJ.
Gary Hampton appeals from a judgment of conviction after a jury found him guilty of two counts of armed robbery, party to a crime, contrary to §§ 943.32(1)(b) and (2) and 939.05, STATS.
Hampton claims that his right to an impartial jury and due process under both the Wisconsin and United States Constitutions was violated when the trial court refused to voir dire a juror who was sleeping during the testimony of a witness. Because the trial court erroneously exercised its discretion by failing to conduct a hearing as to the nature and extent of the juror's inattention, we remand with directions.
In considering Hampton's claims, we recite only the procedural posture which is undisputed and determinative of his challenge.
A jury convicted Hampton of two counts of armed robbery, party to a crime. Victims, Dana Johnson and Roya Johnson, identified Hampton as one of three individuals who robbed them at gun point on the evening of October 22, 1993, in Dana Johnson's residence. During the trial, both victims again identified Hampton as one of the three perpetrators. Among other witnesses, the State presented Milwaukee Police Detective Thomas Glasnovich. He testified that during Dana's initial interview, which occurred shortly after she reported the robbery, Dana identified Hampton by name and described him as a 6' 3"' tall, thin, 165 lb. male with black hair, brown eyes, dark complexion, possibly chipped teeth and facial scars, wearing a three-quarter length black coat, dark jeans, and a black bandanna. Dana also described a second suspect, the gunman, as wearing a blue bandanna, a green and orange colored windbreaker and blue jogging pants.
Glasnovich explained that Hampton was arrested and soon after was identified by Dana on the street outside of his place of residence. Glasnovich testified that he found certain items allegedly stolen from Dana in Hampton's residence, but no fingerprints were found on any of the items recovered.
On cross-examination, Glasnovich conceded that Hampton reasonably appeared to weigh 205 lbs. versus the 165 lbs. as estimated by Dana. He also stated that in searching Hampton's residence, he did not find all of the clothing that Dana said the gunman had worn.
Hampton's theory of defense was that he had gone to Dana's residence to pay a debt and to buy some cocaine and that he had left before the robbery took place. He further claimed to have purchased the stolen items referred to above from strangers on the street. Hampton's defense also focused on challenging Dana's credibility regarding her identification of him.
After Glasnovich completed his testimony in chief, in the absence of the jury, the following colloquy took place:
(Jury is not present.)
....
Although the trial court denied the "motions for dismissal" it did not specifically address the motion to question the suspect juror. It is this exchange which serves as the genesis of Hampton's appeal.
Hampton claims his right to an impartial jury and a fair trial under Article I, Section 7 of the Wisconsin Constitution and the Sixth and Fourteenth Amendments to the United States Constitution was violated when he was tried by a sleeping juror. 1
Article I, § 7 of the Wisconsin Constitution, guaranteeing an impartial jury, and the Sixth and Fourteenth Amendments to the United States Constitution, guaranteeing an impartial jury and due process, require that a criminal not be tried by a juror who cannot comprehend the testimony. State v. Turner, 186 Wis.2d 277, 284, 521 N.W.2d 148, 151 (Ct.App.1994). 2 It is logical to conclude that implied in the concept of assuring an impartial jury is the presence of jurors who have heard all of the material testimony. The absence of this condition, whether it is due to a hearing deficiency or a state of semi-consciousness, could imperil the guarantees of impartiality and due process.
This is an issue of first impression in Wisconsin. No reported Wisconsin case has addressed the consequences of a juror who is alleged to be sleeping during a trial. A search of other jurisdictions that have confronted the problem of juror inattentiveness through various degrees of sleepiness reveals several categories of consideration.
In the first group of reported cases, the complaining party was deemed to have waived any objection to a sleeping juror because the objection was untimely. 3 The second group of cases found lack of specificity as to when and how long the inattentiveness of the juror occurred. 4 The third group of cases involved "informed judicial knowledge," i.e., when the trial court actually observed the challenged conduct of the juror. In these instances, the trial court has taken judicial notice in determining whether the juror was asleep. 5 A fourth group consists of instances when a hearing was ordered. 6 Regardless of how any of the reported cases are classified for disposition purposes, it is universally recognized that before inattentiveness warrants a mistrial, there must be a determination regarding prejudice. 7 If the inattentiveness was not prejudicial, the defendant is not entitled to a mistrial. See State v. Dyess, 124 Wis.2d 525, 543, 370 N.W.2d 222, 231-32 (1985).
How to proceed when faced with an assertion of jury inattentiveness is determined by the trial court's informed discretion. See United States v. Barrett, 703 F.2d 1076, 1082-83 (9th Cir.1983). To determine whether the trial court properly exercised its discretion in a particular matter, we will look first to the court's on-the-record explanation of the reasons underlying its decision. If that explication indicates that the court examined the facts of the case and reasoned its way to a conclusion that is: (a) one a reasonable judge could reach and (b) consistent with applicable law, we shall affirm even if it is not one with which we ourselves agree. Burkes v. Hales, 165 Wis.2d 585, 590, 478 N.W.2d 37, 39 (Ct.App.1991). With these precedents and precepts as a guide, we examine the record before us.
From our review, we conclude that Hampton's objections to the sleeping juror were timely as evidenced by the trial court's response to the district attorney's objection to the lack of timeliness: "he [defense counsel] did pass a note up to me and I observed [the juror]." The requirement of specificity was met in that the objection occurred both during and immediately after the conclusion of Detective Glasnovich's testimony; thus, the trial court was afforded the opportunity to directly address the threat to impartiality and resultant prejudice. Left unanswered, however, is whether the trial court properly exercised its discretion in addressing the issue of impartiality and prejudice.
The contents of the colloquy between the trial court and defense counsel when the motions for mistrial and voir dire of the juror were made leave little room for disagreement. The juror was sleeping, the extent of which, however, is unknown. Defense counsel claimed the juror was "dozing off and not listening or paying attention ... over a period of at least ten minutes." The trial court...
To continue reading
Request your trial
-
State v. Novy
...state of semi-consciousness, could imperil the guarantees of impartiality and due process.” Id. (quoting State v. Hampton (Hampton I ), 201 Wis.2d 662, 668, 549 N.W.2d 756 (Ct.App.1996)) (internal quotation marks omitted). Review of an allegation of juror inattentiveness involves a twofold ......
-
State v. Yamada, 26506.
...essential portions of the trial and was able fairly to consider the case. Id. at 1083 (emphasis added); see also State v. Hampton, 201 Wis.2d 662, 549 N.W.2d 756 (Ct.App.1996); State v. Wright, 203 Kan. 54, 453 P.2d 1 (1969); Hasson v. Ford Motor Co., 32 Cal.3d 388, 185 Cal.Rptr. 654, 650 P......
-
State v. Saunders
...when faced with an assertion of jury inattentiveness is determined by the trial court's informed discretion.” State v. Hampton, 201 Wis.2d 662, 670, 549 N.W.2d 756 (Ct.App.1996). In determining whether the trial court properly exercised its discretion in this matter, we look first to the tr......
-
State v. Bailey
...11 P.3d 866 (2000) and several foreign cases involving jurors who have fallen asleep during portions of a trial: State v. Hampton, 201 Wis.2d 662, 666-67, 549 N.W.2d 756 (1996); People v. South, 177 A.D.2d 607, 607-08,576 N.Y.S.2d 314 (1991); People v. Valerio, 141 AD.2d 585, 586, 529 N.Y.S......